Put a libertarian and non-libertarian in a room and you get an argument, always the same argument. Yesterday at my place it was over whether people who got cancer from industrial emissions would be able to collect fifty years hence. A few weeks back at David Sucher’s it was over whether houses would collapse in earthquakes without building codes. The other day at Radley Balko’s it was over whether without animal cruelty laws the evil neighbors would buy up puppies and kittens and torture them without fear of reprisal. Only the details vary.

Thomas Sowell wrote a book on this subject, A Conflict of Visions, in which he claimed that the fundamental divide is between those who believe in the perfectibility of human nature and those who do not. In fact it is less momentous: it’s between those who believe in the perfectibility of the state and those who do not. Some people think that the state can mete out perfect justice, some don’t. Libertarianism fails, in the eyes of the first group, if any evil goes unpunished. Now no one, not the most ardent statist, believes that the state can mete out justice in every case. But a surprisingly large number of people, a substantial majority, believes that, for every case, a theoretical mechanism for redress or punishment ought to exist. They readily concede that in practice eggs must be broken to make omelets. Mistakes are made. But if the mechanism exists, conscience is assuaged, and that is enough.

Good law sometimes produces unjust outcomes; a famous maxim expresses this, conversely, as “hard cases make bad law.” In Waube v. Warrington, a classic torts case from 1935, a woman watched a negligent driver strike and kill her daughter. The woman died a month later, allegedly of shock, and her husband sued. Maybe it was true, maybe not, but the Wisconsin Supreme Court never reached the question, dismissing the suit on the grounds that damages for mental distress require physical contact, and there was none in this case. If the woman really did die of shock, then the outcome was unjust. Yet the law was sound, based on a bright-line, predictable, common-sense standard. Like any such standard, it does not fit every case. Too bad. Law is collective, justice individual. You can swallow this or you can’t.

Buildings collapse sometimes in earthquakes and kill a lot of people. This happens more often in poor countries than rich ones because taking precautions against a rare catastrophe is a luxury, and rich people can afford more luxuries than poor people. It will continue to happen more often in poor countries, no matter how stringent their building codes, because builders will circumvent regulations that they cannot afford. If the codes are rigidly enforced then fewer houses will be built, and people who formerly lived in shoddy houses will do without instead. You can swallow this or you can’t.

The trouble with animal cruelty laws is that animals are property, and such laws infringe property rights. You can tack on riders like “needless” all you like, but infringement is infringement, and when the only question is how much, the laws become a way to harass people in the animal business. (So far the animal rightists have mostly trained their fire on unpopular targets like foie-gras producers and circus trainers; scientists, assuredly, are next.) Of course without the laws Cruella de Ville can sew herself a nice coat out of Dalmatian puppy hides and there isn’t a damn thing the cops can do about it. You can swallow this or you can’t.

If you’re on Team Perfect and I’m on Team Good Enough, we can argue to eternity and never get anywhere. What say we save our breath and stick to poetry, and stuff like that?

(Update: Spelling and capitalization of “Dalmatian” corrected at the behest of Greg Hlatky, who ought to know. David Sucher professes bemusement. Forager notes that the comments go a long way to prove the thesis.)

Building codes and animal cruelty laws are both restrictions on property rights. Property rights have never been absolute in this or any other society. Common law nuisance doctrine, which we received from England, provides the baseline: one may not use one’s property in a manner that harms another. For an old case on this theme see Rylands v. Fletcher. An argument based on absolute property rights conceals an argument based on anarchy, since without restrictions on property "[g]overnment could hardly go on…." (Pennsylvania Coal Co. v. Mahon). Perhaps you’re advocating anarchy without caring to say so. But I thought your readers would like to know the implications.

I thought "Why not look at the next post and see if the next predictable strawman comes up" and it looks like I was right.

No major U.S. political tendency believes in the perfectability of the state. All that you need do, to defend some habitual or proposed function of the state, is to show that it is better than the alternatives. Perfection is neither claimed nor necessary.

Now, if I wanted to characterize this as an unending conflict between Team Perfect and Team Good Enough, I’d cast the labels in the other direction. It is libertarians who demand ideological purity in all of society’s arrangements, and who think that we can one day live in an ideal society with a perfectly minimized government.

Jim Henley, a libertarian blogger whose site I always find worth reading, has a test based on his mother or sister or something; he wouldn’t propose a regulation unless he could in good conscience, and at last resort, send a family member of his to jail for breaking it. I find this to be a much more reassuring test, since I can’t imagine one of his family members having sole ownership of a nuclear power plant, a refinery, or some other major piece of industrial hardware.

Interesting, but I would say the fundamental libertarians/statist divide is not about the perfectability of the state. Rather it is an argument about the nature of idealism.

To the statist, idealism is about (trying to) achieve ideal outcomes in the real world. It’s consequentialist, in other words, and out of that flows justification for just about anything. Ends justify means, so, infringing rights is not just OK, it’s required. It’s also materialist. Ideals aren’t about how we act; rather they are about the circumstances in which we live. We all should have ideal circumstances: enough food, enough shelter, enough medical care, freedom from crime and war, etc. etc.

To the libertarian, idealism is (I don’t really know the right for this) "essentialist". Ideals are not patterns to be achieved in the physical world; they are patterns to be achieved in how people interact with each other. I try to live my life to follow moral ideals, most particularly nonaggression. To the libertarian, if limiting ourselves to peaceful interaction creates problems for some folks, that’s too bad for them. In other words, if you can’t handle owning a gun and shoot yourself — too bad. I’m sorry it happened but the right to be armed is superior to your need to be protected from yourself. The means matter; if an end cannot be achieved morally, too bad for that end — even if it is, in the ideal, an attractive end. To a statist, that last sentence makes no sense; does not compute. If an end cannot be achieved, well, that’s one thing. But the morality is all about the end itself, not in the means of getting there.

If you talk to a statist for a while, you’ll run into this sort of roadblock. They absolutely believe that something – it varies, but there’s always something – absolutely must be provided, and that something requires "society" (practical meaning: the state) taking part-ownership of everyone.

What totally confuses me about your perspective, Aaron, is where you get the first premise.

In the most gentle possible way I suggest that it is claptrap and nonsense for you to state that the reason some people (e.g. David Sucher) favor building codes is because they believe in the perfectability of the state. That is simply false. Or comic relief. The notion is such a contortion, such a reaching to make a point, that it diminishes the worth of your blog and yet it is also so absurd as to bring a smile.

Look, no matter how many times you repeat a straw man, that does not make it true. All we need argue is that, to take David Sucher’s example, a particular area works better with building codes than without them. The struggle for perfection, or some transcendent ideal outcome, seems more like a libertarian projection than anything else.

But for libertarians "building codes" equate to "part-ownership of everyone". Oh, the horror — as if property and property rights were ever anything more than a social construct. Somehow libertarians never seem to think of that when they are in the middle of advocating that society create brand new "property" rights, like the pollution trading schemes mentioned in the last post.

"Predictable strawman," "claptrap and nonsense," "closet anarchist," "interesting but wrong"; reader satisfaction is at an all-time high. Remind me to blog about politics more often.

I would be more impressed with Rich Pulasky’s prescience if he told us which "predictable strawman" I was going to knock down in advance, more impressed with his manners if he didn’t constantly resort to terms like "strawman," "unserious," "dogma," "moral cretin," and "high school debating team," and more impressed with his arguments if he read mine more carefully. What I said is that statists believe there must be a mechanism for alleviating any potential injustice, not that the mechanism always works correctly. When statists say "libertarianism fails because [nobody will build the roads/buildings will fall down/chemical companies will poison the atmosphere]," what else do they mean? Why should this argument be decisive, assuming by hypothesis that it’s true? I tried to answer this question in the post.

Let’s see if I can dig up a couple examples… Ah, here’s one: "Suing [chemical companies] after the fact does nothing; unless they are a multinational, a single big incident puts them in bankruptcy anyway, and for less dramatic incidents the exact genesis of any particular case of cancer is impossible to prove. So governmental regulation of their operating practises and pollution levels is the only way to go. This is one of the areas where libertarian dogma just doesn’t work."

Here’s another: "Why are you so against codes? I don’t get it. Would you really prefer to live in a society in which you didn’t have even the vaguest assurance that the buildings you live in or even casually visit were structurally safe?"

These selections have two features in common. One, as Leonard would hasten to point out, is that the authors disregard the liberty interest. The fact that their proposed measures involve coercion of innocents does not bother them in the slightest.

Another is the one I was getting at here. Attractive results must be guaranteed. If we want buildings to stand up, we must have building codes; otherwise how can we be sure? If we want to prevent industrial cancer, we must have regulation of chemicals; otherwise how can we be sure? If a result is attractive there must be a mechanism to achieve it, a mechanism that I, personally, can conceive; otherwise how can we be sure? But I guess you guys are right and I was just making it up.

The first selection, incidentally, is from Rich Pulasky. The second is from David Sucher.

Perfection already contains an implicit slam by contemporary standards. Infected by theory/practice and mind/body dualism, nobody (except real cranks like me) even thinks that "perfection" is attainable on earth.

So neither the statist nor the libertarian actually relies on the concept, even implicitly. Statists don’t hold that their laws will keep every building 100% safe anymore than libertarians believe that freedom will keep them all standing, either. The statist thinks that it’s o.k. to use state force. The libertarian thinks that this is always counterproductive. Both can be based on deontological arguments–"it’s just wrong!"–or consequentialist ones–"the better statistics show that our goal can [or cannot] be achieved by…" Neither really believes in any "perfect" anything.

Why political arguments never convince anyone is because political arguments presuppose ethical ones, as Leonard suggests. The ethical ones are the deciders. Do people have rights? Why? What are these rights? How can these be violated? Should we always care if they are? Are these rights rooted in consequentialist arguments (Leonard thinks not), are they deontological, or what?

The collectivist says that the collective (the Majority, the Working Class, the Master Race, etc.) has every right to force individuals, minorities, those who don’t share Leonard’s ethical "intuitions," etc. He argues that the "collective good" is the correct standard to evaluate policy anyway.

The libertarian (the ones I can fathom, anyway) argues that only individuals exist, have choice, etc., and that such laws are every bit as counterproductive as the collectivist says that they are necessary.

Aaron Haspel characterizes my position as "Attractive results must be guaranteed. […] If we want to prevent industrial cancer, we must have regulation of chemicals; otherwise how can we be sure? If a result is attractive there must be a mechanism to achieve it, a mechanism that I, personally, can conceive; otherwise how can we be sure?"

Nonsense. Look at the actual quote that Haspel cites. It is an argument that considers one often suggested libertarian solution to pollution and chemical accident problems, lists reasons why this solution does not work, and claims that regulation is better.

There is nothing hypothetical about the argument; both solutions have been tried, and the libertarian one found inferior. As matter of historical fact, the solution of filing lawsuits after the fact was found not to work. Nor is the solution of regulation proposed on the basis of theoretical twaddle like "Attractive results must be guaranteed"; there is an actually existing regulatory regime with an actual record of success.

Which is why, when they discuss any particular issue, libertarians quickly are forced away from theoretical nonsense and towards anecdotal falsehoods. They know that the actual facts are against them. So a discussion about chemicals quickly brings up the old standbys: falsehoods about Alar, Bhopal, Love Canal — extending all the way back through the history of the subject, because libertarians dare not admit once that their preferred solutions don’t work.

As for the coercion of innocents? Spare me your tears. Libertarians who rely on those arguments are just gutless anarchists who still want to force people to pay for their goon squad — excuse me, "minimal state" — to enforce "freely arrived at contracts" between the local corporate monopolist and its serfs.

Rich, sorry I wrote imprecisely there. I don’t think most statists think they can achieve idealized outcomes. Rather, I meant that statists work towards outcomes that their idealism tells them are worthwhile. That’s why I put in that parenthetical "(trying to)".

I think idealism is a good thing. But the idealism of libertarians and statists goes to very different places. My ideals are about the ways that people should act towards each other.

Everyone is, at some level, an idealist. Look at what you just wrote: "All we need argue is that… a particular area works better with building codes than without them". What does it mean to say one area works "better" than another, unless you have in mind some sort of ideal? Presumably the ideal here is something like: nobody ought to die in earthquakes.

"Nobody ought to die in earthquakes." This is deontological "idealism" at its best, and worst. No single value is even a "good" out of its consequentialist context, out of the total context of our values and their heirarchical relation to each other. For this, we need more than a "conscience" or "idealism" or moral "intuition." What if Hitler were the only one to die in the quake…? What if the cost of perfect earthquake safety was to impose on everyone a cost that would make eating unaffordable? Dis-intgrated ethics will result in dis-integrated politics, every time. The only way to integrate ethics is by asking about our ethical foundations. If "no one should die in need of kidney transplant" is a value, then why not force the healthy to surrender one of their kidneys? If earthquake safety is a value, then why not demand that no building ever be multi-storied? Why have electrical wires at all? Why ever build with brick? Etc., etc.

"Which is why, when they discuss any particular issue, libertarians quickly are forced away from theoretical nonsense and towards anecdotal falsehoods. They know that the actual facts are against them. So a discussion about chemicals quickly brings up the old standbys: falsehoods about Alar, Bhopal, Love Canal — extending all the way back through the history of the subject, because libertarians dare not admit once that their preferred solutions don’t work."

The best arguments against regulation are not Bhopal, Love Canal, or Alar. (Not that I have seen Mr. Puchalsky present any evidence that my statements about Love Canal or Alar were falsehoods. Perhaps to Puchalsky, calling someone a liar or a "high school debate team" is an adequate rebuttal, but I doubt that most people would agree.)

When Aaron and I argued against regulation, we pointed to the banning of DDT, which deprived millions of Africans of a cheap means of preventing malaria, and the FDA’s slow acceptance of beta blockers, which could have saved the lives of tens of thousands of Americans with heart trouble. These are not defects of regulation that can be imagined away by saying "well we should have the current regulatory system, but better". These actions were inevitable given that regulation is controlled by the political process, which pays too much attention to the sensationalistic and not enough attention to frequency of occurrence, or indirect effects.

Your lovely and correct argument against deontological idealism is why I prefer the distinction of Platonists v. Aristoteleans. Statists create a "form", which they believe to be a prexisting truth they have discovered and not contrived. It doesn’t have to be as abstract as "no one ought to die in an earthquake". It can be simple as "this is the perfect chair." Platonists have lots of Eames chairs around; it has been supplanted in offices by the new Platonist Aeron chair, when Platonists discovered the perfect chair might not be suitable behind a desk.

Then the Aristotelean asks, "Is it perfect if you are 7 feet tall?" or "What if you are a midget?" In short the "forms" are, by their nature, Procrustean.

The Aristotelean asks the important questions, like "What if this really good for you organic reduced fat peanut butter was mixed with high fructose trans-fatty chocolate? Wouldn’t that be good?" The Platonists form of health food is of course offended, but their tastebuds may be tickled.

It can of course be objected that there is a libertarian "form" of lack of state intervention and that libertarians are the real Platonists. And I suppose that is true as far as it goes. Yet I see as many libertarian objections to the "plans" of other libertarians as statists for the plans of statists. You would think that statists would be hopelessly divided over the wealth of competeing plans. No such luck.

Mr. McWilliams’s last paragraph touches on what I think is a major libertarian/statist intellectual divide. This is the question of whether to consider specific programs (regulations, codes, etc) one at a time or within the context of general powers.

Of course there are some instances where a particular regulation will improve outcomes. Every statist can find their favorite and cite it as an example of how "libertarian dogma doesn’t work." They’re all missing the point.

The point is: it does not follow that giving government *general* regulatory power produces better outcomes overall than refusing it that power. And those, to a libertarian, are the real choices before us; giving the goverment power only to implement good regulations isn’t an option. Government, like the market or any other mode of organized social relation, has an institutional nature, and if given power will exercise that power in predictable ways, even if we think it would do better to exercise the power in different ways. The menus it provides us are prix fixe, not a la carte.

Ceteris paribus, we may well be better off with building safety codes than without. But that is not the question: the question is whether would we be better off without the whole complex of government regulations of economic activity– which includes some effective, good stuff, but also includes a very great deal of costly, counterproductive, progress-preventing idiocy. A much harder question to answer, that.

Jim Valliant asks where the libertarian solution to pollution has been (even partially) implemented. Well, the libertarian experiment with the minimal state — with regards to domestic economic policy — has been tried, in a more or less modern, industrialized society. It’s called the first third of the 20th century in the U.S. The only thing that saved capitalism at that juncture was the introduction of a mixed economy.

Of course, if you want the minimal state to exist now, Somalia is, I believe, accepting immigrants. Actually there is no one to stop you from immigrating, at least no *governmental* entity.

As for McWilliams’ continued objections over particular issues, I repeat that there is no way to keep up with a continuous stream of falsehood. If Floyd McWilliams read citations, he wouldn’t be asking the questions he does, so I see no point in looking them up for him. His views on DDT, by the way, are another one: DDT was never banned in countries where it is critical for mosquito control, and in fact is still in use. I know that I’ll regret this as McWillaims demands that do his Google searches for him, but here is one: http://www.who.int/inf-pr-2000/en/note2000-15.html.

I think that Nicholas Weininger has by far the better approach, since he doesn’t feel the need to argue over every specific case, but admits that regulation sometimes succeeds and questions whether the successes are worth it overall. That I don’t pretend to know; I’ve only claimed that regulation is worth it within a particular sphere. I see no reason, in theory, why it might not be limited to that sphere if that was really shown to be best.

The moral arguments for libertarianism — of the form "regulation is equivalent to being robbed" or "regulation requires the coercion of innocents" — are the most objectionable. Libertarians who make such arguments are redefining both liberalism and conservatism as being based on "violence". If truly believed in, this argument makes libertarianism a totalitarian movement, since any other political belief is ruled a priori illegitimate.

""But for libertarians "building codes" equate to "part-ownership of everyone". Oh, the horror — as if property and property rights were ever anything more than a social construct.""
I don’t agree with the libertarian understanding above, as you present it but the following sentence, at least the way in which you presented it thus, gives me the willies: " as if property and property rights were ever anything more than a social construct."

I tend to think that this statement is more indicative of Platonian sentiments, or further, a casual disregard of the nature of existence, though I appreciate other’s discernment techniques I’m always looking to benefit from. Though I suppose it would hinge on the definition of "social construct".

Is this the viewpoint: "[…]as if property and property rights were ever anything more than a social construct." commonly alluded to amongst economists as "The Historical School"?

reader: Property rights have always varied according to societal mores, and can not be maintained without societal effort. Therefore any appeal to "absolute" property rights fails. The whole concept of a property right, as opposed to your individual and personal use of force to fend off others and grab whatever you can grab, depends on there being a societal mechanism to define and protect your property. If the rest of society decides through whatever means that property rights have changed, they have changed, whether you believe this to be unfair or not.

So, in the example of building codes, a libertarian presumably would say that the owner of land has an absolute right to build what they like on it (that doesn’t hurt others), and that building codes infringe this right. This is nonsense. The concept "owner of land" is a specific bundle of rights that society has decided to hand out. For instance, in the U.S., if you own land you generally don’t own the mineral rights to it or the airspace over it, it can be seized through eminent domain or for nonpayment of taxes, neighbors can have a right of way across it, etc. If society decides to have building codes, you can argue that this is the wrong decision or unjust or whatever, but if they don’t agree, you’re out of luck.

And before anyone whines that even in a republican country with constitutional protections this is majoritarian tyranny, consider that others are the ones you’re asking to defend your property, with their tax money and indirectly through their use of force. If you want to renounce society, go ahead and try it, but you will of course have no one to enforce your "property rights" but yourself.

I did not realize that air and water were ever treated as private property–as opposed to "public goods"–even in the first third of the 20th Century. The issue was pollution policy and this was collectivized from the git-go. Moreover, the first third of the 20th Century saw the advent of the Fed and Income Taxes and Antitrust Laws–the sad prologue to the Great Depression. The New Deal did nothing to "fix" the problems generated by state intervention and only prolonged the Depression.

I enforce standards of discourse and you, Rich, have been over the line for some time. (I exempted the IMAO trolls from a few posts back, who are children and don’t know any better.) To the list of invective from my last comment we can now add "goon squad," "gutless anarchist," and "whining." You will note that everyone here has treated you courteously and only you have called names. I expect an immediate and public apology and much, much better behavior in the future or I will not permit you to comment here.

"If truly believed in, this argument makes libertarianism a totalitarian movement, since any other political belief is ruled a priori illegitimate."

No, they’re found wrong about first principles… which is the opinion the adherents of every political theory have of other theories. Dressing this up in inflamitory language about legitimacy rather than correctness in the case of libertarianism, but refraining from doing it in the case of all the other ideologies that have the same views (i.e., the rest of them), doesn’t actually distinguish libertarianism itself from other ideologies. It only demonstrates that your own personal attitude toward libertarianism is different from your attitude to the others.

Sorry David, I’m tired of this thread but I owe you a reply. Your argument in defense of building codes, as made on your blog and in correspondence to me, runs: Buildings would be sounder if there were building codes. If buildings were sounder then fewer people would die in earthquakes. Therefore building codes are good. This sounds like a caricature but I don’t think I’ve skipped any steps.

The bald premise of this argument is that the state ought to intervene if to do so would produce what, in your view, is a desirable result. (The meaning of "desirable" and the question of differing desires take us beyond the scope of this discussion.) It follows logically, by inversion, that if you can’t imagine how to arrive at a result you like under a political system, that system fails. In fact you’ve written as much to me more than once: libertarianism can’t "solve" the problem of zoning, the problem of building codes, etc. I said that non-libertarians demand a mechanism, a state lever, to produce any result they deem desirable. Isn’t that the literal truth?

No, Aaron, I believe that you have it turned around a bit. The original purpose of building codes — like criminal codes — was to prevent bad things, not to do good things. There is a subtle but very real difference. Building codes grew literally (in Anglo-American law) out of the "police power."

My wife and I drove down the coast to the golf tournament at Pebble Beach last week and I must admit it’s real nice to go a whole week with nary a Wal-Mart, Home Depot, Lowells, Target, etc. etc. anywhere in Pacific Grove, Carmel or Monterey. A case, I think where regulation has saved much more regulation later. On the other hand, in Monterey, where the average home price is around $800,000, their school district is all broke down financially due to silly ass regulation upon regulation being enacted in a never ending stream to the point of a big to-do going on right now over closing two schools.

I liked your opening line, Aaron: "Put a libertarian and non-libertarian in a room and you get an argument, always the same argument." Of course, if you put two libertarians in a room, one will always emerge a "non-libertarian." It’s usually me.

BTW, check out San Francisco before and after building codes. Thousands of people died in the 1906 earthquake; dozens of people died in the latest one. All philosophical quibbling aside, I’m with Sucher on this: Building codes tend to make natural disasters less deadly.

We can question how much of these building codes we should have, and we can question whether the market wouldn’t take care of building safety on its own. But if we get down to brass tacks — look at the before-and-after pictures, as it were — we have to conclude that, much as we hate government, it might have lucked on a beneficial idea here.

I don’t have to be perfect to do good things, or keep bad things from happening. This is lucky for me (and perhaps for those around me as well), because I’m not perfect.

i’ll play the idiot and claim this issue can be easily resolved: who does the most harm? clearly the statist — see hitler, mao, stalin, etc. in fact, their experiments pretty much prove (please, i understand the difference between proof and demonstration) that the assumptions underlying statist thinking are pretty much just wrong. i read the difference between the two as whether you can solve problems or accomodate them. anyone claiming to have solved things for all time (again, mao, stalin, kant) is usually wrong (because we assume they mean that they’ve solved things for actual humans living actual lives rather than some theoretical construct of what humans might be, but their solutions tend to ruin upon the rock of reality (is that alliteration or consonance or both?)).

I have enjoyed this argument greatly, as both sides make convincing arguments. I personally agree with Mr. Sucher on the very specific debate on building codes. i would also like to echo a previous sentiment….. don’t you people have jobs?